109 N.Y.S. 831 | N.Y. App. Div. | 1908
Lead Opinion
Blanche L. Andrews was duly declared incompetent in the month of October, 1903, and John Notman, John E. Roosevelt and Constant A. Andrews were appointed committee of her estate on the twenty-eighth day of that month and they qualified on the day following. Mr. Notman was a member of the bar, Mr. Roosevelt was brother-in-law to the incompetent, and Mr. Andrews
On the 9th day of Hovember, 1906, Hotman and Boosevelt verified a petition, dated oil the seventh day of the same month, for a judicial settlement of their accounts. Their motion was returnable on the fourteenth day of the same month, but was adjourned and determined with the other motion, to which reference has been
On the 15th day of Rovember, 1906, Rannie V. Roosevelt, who is the wife of John E. Roosevelt and the sister and only heir at law of the incompetent, duly verified a petition for the removal of Andrews as committee of the person, containing allegations which, if established, would justify, if they would not require, his removal as committee of the person. This petition was returnable on the 19th day of Rovember, 1906. The motion was adjourned from time to time until the 23d of January, 1907, when it was referred to the same referee, and on February eighth thereafter the same special guardian was appointed nunc pro tunc as of the day the order of reference was granted. This is known as proceeding Ro. 3. These three proceedings, apparently, were brought to the attention of the referee at the same time, and a stipulation was made by which proceedings Ros. 1 and 3 were to stand until after proceeding Ro. 2, for the accounting, was finished, and that then Ro. 3 should stand until Ro. 1 was finished. Ro further proceedings were had before the referee in proceeding Ro. 3.
It appears that Andrews and Roosevelt were unfriendly and could not act in harmony, owing, among other things, to a difference in views with respect to the expenses incurred by Andrews as committee of the person of the incompetent, and during the period from January to the 14th of June, 1907, Andrews presented no
Roosevelt paid some of the accounts and corresponded with Andrews concerning others, apparently with a view to obtaining information and also questioning the necessity of some of the expenditures. On the 27tli day of June, 1907, Andrews petitioned the court for an order directing the committee of the estate to reimburse him for the expenditures made and ■ fixing a monthly allowance to be thereafter paid to him as committee of the person for the care of the incompetent. This proceeding was referred to the same referee on the 8th day of Jnly, 1907, and the same special .guardian was appointed. The charges of neglect and failure on the part of Roosevelt to pay proper bills and to reimburse Andrews for expenditures made on account of the incompetent were such that the referee was directed to proceed with the reference from day to day. He did so and reported thereon on the 23d day of July, 1907, and his report recommended that Roosevelt, as committee of tire estate, be directed to pay upwards of $8,000 of the claims for maintenance of the incompetent, which he had failed to pay. The referee in his report, speaking of the lack of harmony between the two surviving members of the committee, said: “ Friction, most regrettable in the administration of an estate of this character, has arisen between Mr. Andrews and Mr. Roosevelt, which has been emphasized since the death of Mr. Hotman, which took place during the month of January, 1907. This friction was of so acute a character that for several months bills incun-ed in connection with the maintenance of the committee’s 'ward have not been paid- * * * Such friction and delay cannot fail to exert a most unwholesome influence upon the condition of the committee’s ward, and should be avoided in the future.” Exceptions to the report were filed by Roosevelt, and a motion for its confirmation was made returnable at the same time as the motion for. the confirmation of the report in proceeding Ho. 2, concerning the accounting: The order from part of which the appeal is taken confirms the report of the referee directing the payment of the expenses incurred by the committee of the person and fixing a monthly allowance of $1,500
There had been, from time to time, serious friction between the committee of the person and Mr. and Mrs. Eoosevelt concerning the place of abode of the incompetent and visitations to her by them. The court had been appealed to and had given directions on this subject by an order on the 18th day of December, 1906. On the 8th day of April, 1907, on another application the court directed that the incompetent should not be removed from a sanitarium at Broadway and Two Hundred and Sixty-first street, New York city, without notice in writing to Mr. and Mrs. Eoosevelt and to the special guardian, and also directed that Mrs. Eoosevelt be permitted to visit her sister at certain specified times and that Andrews be not present on such occasions. On the 26th day of June, 1907, Andrews verified a petition upon which he obtained an order to show cause, directed to Mr. and Mrs. Eoosevelt or their attorneys and to the special guardian of the incompetent person, returnable on the 26th day of June, 1907, for the modification of the order of April 8, 1907, so as to permit him to select such residence for the incompetent as he or the court might deem suitable, without notice to Mr. or Mrs. Eoosevelt or to the special guardian. Tliis proceeding was also referred to the same referee at the same time that the last specified proceeding was referred to him. This reference was proceeded with, and on the 23d of July, 1907, the referee made his report recommending that the order be amended substantially as prayed for. A motion to confirm this report was also made returnable on the 26th day of July, 1907. On the 28th day of August, 1907, the court appointed two alienists to examine the incompetent and report as to whether the removal of the incompetent to her residence No. 737 Madison avenue during all or any portion of the year would be. beneficial to her and whether her mental malady was incurable, and to advise with respect to the reception by the incompetent of her husband, relatives and friends as visitors. They reported in substance that her mental malady is probably incurable, but that the chances of recovery would be promoted by her retention in an institution similar to that in which she then was and that visits to her should be regulated by the physician in charge. The court thereupon and on the 23d of November,
The order from which the appeal is taken was made on the 23d day of November, 1907. In and by it the court at Special Term, of its own motion, vacated the two orders of reference then pending undetermined before the referee and upon which no report had been made. These were the orders of reference in proceedings known as híos. 1 and 3, the first being an application for the removal of the committee of the estate and the substitution of a trust company, and the other being an application for the removal of the committee of the person of the incompetent. The opinion of the learned judge who made the order, from.part of which the appeal is taken, shows that he intimated to the committee that he would remove them and gave them (the other parties) an opportunity to agree upon another committee which they were unable to do.
In Matter of Bomanjee Byramjee Colah, a Lunatic (3 Daly, 529), Chief Justice Daly traces the history of the jurisdiction of the court over the persons and estates of incompetents and shows that it was the intention of the Legislature to delegate to the court the duty devolving upon the State as parens patriae of incompetent persons
I am also of the opinion that the court should not have summarily vacated the order of reference and have denied the motion for the removal of Andrews as committee of the person of the incompetent. . The charges are sufficiently grave to require an investigation. In that regard, therefore, I think the order should be modified by striking out that part thereof which vacates such order of reference and denies the motion for his removal.
It follows that the order should be modified as already indicated, and as thus modified affirmed, with costs to all parties, payable^ by the committee out of the estate.
McLaughlin and Houghton, JJ., concurred; Patterson, P. J., and Scott, J., dissented.
See 56 Misc. Rep. 6.— [Bep.
Dissenting Opinion
I am not able to concur in the affirmance of this order, even with the modifications directed hy the majority of this court; but if the order is to stand at all, those modifications are properly required.
The majority of my associates are of the opinion that the court at Special Term should not have vacated the order of reference and denied the motion relating to the removal of Mr. Andrews as committee of the person of the incompetent. The charges against Mr. Andrews, all agree, are sufficiently grave to require investigation. The ground upon which Mr. Roosevelt as committee of the estate of the incompetent has been removed, is only the inharmonious relations existing between himself and Mr. Andrews. There is no proof that the estate has diminished or suffered in any way by reason of such relations. On the contrary, the estate has been well cared for and the accounts of the committee have been approved. If the charges against Mr. Andrews are proven and sustained, the inharmonious relations between him and Mr. Roosevelt may be explained readily and Mr. Roosevelt’s course, may perhaps be commended instead of meeting with reprobation and punishment.
I am of the opinion that ,the proceeding concerning the removal of the committee of the estate of the incompetent should have been
Dissenting Opinion
I am constrained to dissent. The question involved is not so much as to the jurisdiction of the court, but as to the proper procedure to be followed in invoking and exercising jurisdiction.. As I read the record on appeal no motion for the removal of the committee was regularly bcfoz’e the court. Undoubtedly the court may and should act with expedition, and even summarily when it appears that an estate is being misznanaged and wasted. Nothing of that sort appeaz-ed in the present case. The report of the referee approving the coznmittee’s account, which was confirmed by the order appealed frozn, shows that the estate had been prudently managed and was well invested. No interest of the estate could have suffered, i£ the matter of z’emoving the committee had been allowed to rest until it could be brought before the court regularly, upon due notice to all parties concerned.
Order modified as directed in opinion, and as modified affirmed, with costs to all parties payable by the coznmittee of the estate. Settle order on notice.